Category Archives: Mark L. Movsesian

Mideast Christians and Authoritarian Regimes

2000px-Coptic_cross.svgLast week’s ruling in Obergefell took up a lot of attention, but I’ve been meaning to link a couple of good articles about Mideast Christians, specifically, their relationship with authoritarian regimes. Outsiders often criticize Mideast Christians for coming to terms with such regimes. But the regimes are often the best alternative in a terrible situation.

First, at Crux, John Allen has been writing a series on Egypt’s Copts, who are going through one of the worst periods of persecution in their long history. Yesterday, he posted an interesting piece on relations between Copts and Egypt’s President Abdel Fattah el-Sisi. El-Sisi has made a number of high-profile gestures of solidarity with Copts, including attending a Christmas Liturgy, and the vast majority view him very favorably. The Coptic Church is solidly behind him, and for most Christians, Allen writes, “it’s axiomatic that el-Sisi is the best thing that’s happened in a long time.”

But there are dissenting views. Allen interviews a few Copts who say El-Sisi’s warmth is just for show, and that his regime continues to oppress Copts, just as the Mubarak and Morsi governments did. Crimes against Copts continue to go unpunished, and there is still  “forced displacement, harassment under the country’s anti-blasphemy laws, kidnappings and physical assaults.” Indeed, one commentator reports that, “in virtually every category… the number of incidents today is going up rather than down.” Perhaps Christians’ support for el-Sisi is misplaced–or perhaps, as most Copts argue, el-Sisi is doing all he can to change traditional Egyptian attitudes, and is the best option in a very imperfect situation. My sense, from reading Western news accounts, is that the latter is the case. But I’ll admit Allen’s reporting makes me wonder a bit.

The second is this wide-ranging interview from La Stampa’s “Vatican Insider” with Syriac Orthodox Patriarch Ignatius Aphrem II. Aphrem–who previously served as his church’s archbishop in America, incidentally–discusses a number of topics, including Christians’ relations with the Assad regime. Here’s a snippet:

Some Western circles accuse the Christians of the East of submitting to authoritarian regimes.

“We have not submitted ourselves to Assad and the so-called authoritarian governments. We simply recognise legitimate governments. The majority of Syrian citizens support Assad’s government and have always supported it. We recognise legitimate rulers and pray for them, as the New Testament teaches us. We also see that on the other side there is no democratic opposition, only extremist groups. Above all, we see that in the past few years, these groups have been basing their actions on an ideology that comes from the outside, brought here by preachers of hatred who have come from and are backed by Saudi Arabia, Qatar and Egypt. These groups receive arms through Turkey too, as the media have shown us.”

You have to read between the lines here. What he’s saying, it seems to me, is not that Assad is wonderful, but that the alternative for Christians is incomparably worse. Aphrem makes other allegations that seem dubious, for example, that the West is arming terrorist groups that are massacring Christians. I guess he’s referring to Turkey’s alleged links with ISIS. Anyway, it’s hard to argue with his basic point that the West should not judge Syria’s Christians for the choices they have to make. Like the Allen piece on Copts, the La Stampa interview is worth reading for a sense of the pressures Mideast Christians face every day.

Movsesian at ICON-S Conference This Week

ICON-S-logoOn Thursday, I’ll be appearing on a panel at the annual ICON-S conference on Public Law, to be held this year at New York University. The conference is sponsored by the International Journal of Constitutional Law, and draws scholars from around the world. My panel, “The Foundation of an Uncertain Law,” will discuss Cambridge’s new collection of commentary on the jurisprudence of Pope Benedict XVI, Pope Benedict XVI’s Legal Thought: A Dialogue on the Foundation of Law (Cartabia & Simoncini eds. 2014). Other panelists include Michel Rosenfeld (Yeshiva), Ran Hirschl (Toronto), and John Garvey (Catholic University of America). The panel will be moderated by Sabino Cassese, formerly of the Italian Constitutional Court. CLR Forum readers at the conference, please stop by and say hello!

McGinnis on the Roberts Opinion in King v. Burwell

This isn’t about law and religion, but readers might enjoy John McGinnis’s essay in the City Journal on last week’s decision in the Affordable Care Act case, King v. Burwell. John argues that Chief Justice Roberts’s opinion is principled, though wrong, on statutory interpretation. Did I mention John cites my early scholarship on statutory interpretation? My salad days, before I discovered law and religion.

The Same-Sex Marriage Case

For those who are interested, my quick reaction to yesterday’s ruling in Obergefell is in a symposium today at the First Things website. I discuss the Court’s reasoning and the implications for religious liberty. Here’s a snippet:

First, although some commentators predicted that the Court would issue a narrow, pro-gay marriage ruling, the reasoning of Justice Kennedy’s majority opinion is actually quite sweeping, returning the Court to the heady days of substantive due process and unenumerated rights. Forget about textualism and originalism. As Chief Justice Roberts points out in his dissent, even the restraints of “history and tradition,” a limit Justice Harlan once suggested, are effectively shunted aside. A five-justice majority believes that same-sex marriage is a fundamental element of personal liberty, and that makes it a constitutional right.

For constitutional conservatives, this is very disheartening—whatever one’s views on the merits of same-sex marriage as a policy matter. After thirty years and more of trying assiduously to end, or at least limit, substantive due process, the doctrine still carries the day. As Justice Alito writes in his dissent, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of discretion have failed. A lesson that some”—actually, anyone paying attention—“will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means.” Incidentally, today’s ruling demonstrates again how important the 1987 defeat of Robert Bork was, and how much Senate Democrats gained in putting up such a fight against him. It was the defeat of Bork that led to the nomination of Anthony Kennedy.

You can read my analysis, along with the other contributions to the symposium, here.

Conference: “Persecution of Christians in the World” (Brussels)

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For our readers in Europe, the European People’s Party will host a conference at the European Parliament next week on the persecution of Christians around the world:

The Group of the European People’s Party (EPP Group) has the pleasure to invite you to a conference organised by the Intercultural Activities and Religious Dialogue Unit on ‘The Persecution of Christians in the World’. The conference will take place on 1 July 2015 from 14.30-18.00 hrs in the European Parliament in Brussels.

The aim of the conference is to raise awareness at EU level and to provide a follow-up for the Motion for Resolution on the persecution of Christians in the world, in relation to the killing of students in Kenya by terror group al-Shabaab, adopted on 30 April 2015 in Strasbourg by Members of the European Parliament. In this Resolution, Members condemned the persecution of Christians and called on the EU and its Member States to address the persecution of Christians as a priority issue for their foreign policy.

The conference will consist of two parts: the first session will concentrate on the broader Middle East region, notably the cases of Syria and Iraq, and the second on other areas of the world, by giving examples from Asia to Africa.

Interpretation will be provided in ES-DE-EN-FR-IT-HU-PL

The event will take place in Brussels on July 1. Details are here. (H/T: Peggy McGuinness).

Difficult Questions on Unused Embryos

A really fascinating article in the New York Times this morning about the perhaps one million embryos currently in storage in medical facilities across the United States. Most of these embryos have been created through IVF treatments, on which increasing numbers of Americans rely. IVF allows many couples to bring new life into the world and experience the great gift of children. Given the current state of the technology, though, parents who use IVF must typically create several extra embryos in order to increase the odds of conception. This means that many unused embryos remain. The Times  reports that perhaps a million such embryos now exist. What will become of them?

Of course, for many Americans, this question raises important religious issues. The Catholic Church teaches that IVF is immoral in principle, even for married couples, because it violates human dignity and degrades the marital act–though of course children created through IVF are to honored and cherished, just like any others. Evangelical Christians, however, in principle accept the practice for married couples, as do Orthodox Christians. The fate of any unused embryos raises very difficult questions, however. To destroy them seems tantamount to abortion, which both Evangelical and Orthodox Christianity condemn. And all Christians, I think, would have moral concerns about the commodification of embryos that seems the logical outcome of our market society. The Times reports that one California company is already in the business of creating embryos from third parties for would-be parents to purchase, for $12,500, plus a money-back guarantee.

But back to married couples. What should a couple with religious scruples do about extra embryos created by IVF? Some Evangelicals have come up with a good solution. They donate the embryos to other infertile couples. It’s analogous to adoption:

For example, the National Embryo Donation Center in Tennessee, which is endorsed by the Christian Medical Association, places embryos only with heterosexual couples married at least three years — and only after a home study exploring their readiness to be parents, as is required for families adopting a living child.

“We think the embryos deserve the same level of protections as children who are being adopted,” said Stephanie Wood-Moyers, marketing director of the center, where the Watts embryos were stored.

Where does the civil law stand in all this? Unlike many countries, the US does not regulate assisted reproduction technologies, including IVF. And so, as with respect to so many aspects of American life, it becomes a matter of contract law. In my first-year contracts class, in fact, our casebook has two relatively recent cases, one from Massachusetts and one from New York, on the enforceability of parties’ agreements with respect to the disposal of unwanted embryos after IVF. In the Massachusetts case, the court declined to enforce the agreement, in large part because the agreement was ambiguous.

The New York court, by contrast, ruled in favor of enforcement. “Explicit agreements avoid costly litigation in business transactions,” Chief Judge Kaye wrote. She continued:

They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives … both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instances a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of IVF programs.

Now, you might wonder whether questions as complicated and wrenching for people as these should be handled by contract law, as if they were equivalent to particularly difficult business transactions. (“How do we divide up the inventory if the partnership dissolves?”). Surely there is a more humane way to address these issues. But that seems to be the way our culture is heading. If there’s one thing we still believe in, apparently, it’s liberty of contract–at least when it comes to bearing children.

Conversations: Christian Sahner

From 2008 to 2010, young scholar Christian Sahner (left) lived in Syria, studying Arabic. He learned a great deal about the country. particularly the relations among the different religious groups that made up Syrian society–including Christians, who accounted for perhaps 10% of the population. Last fall, he published an engaging account of his time in Syria, Among the Ruins: Syria Past and Present (Oxford). In the book, Sahner describes life in Syria before the Arab Spring. Notwithstanding a surface calm, he writes, sectarian tensions existed just below the surface.

This week, Sahner–who received a PhD in History this month from Princeton, and who will start a research fellowship at Cambridge in the fall–kindly answers some questions about his work. Our conversation covers topics such as the history of Christians in Syria, their experience under the Assad regime, the failure of the Arab Spring, and prospects for the future.

Christian, let’s start with some background. Your book is a reflection on the years you spent in Syria (2008-2010) and Lebanon (2011-2013). Why did you decide to live in these countries? What were you doing there?

Sahner: I first came to Syria for language study. Before the tumult of the Arab Spring, it was common wisdom among students that Cairo and Damascus were the best places to master Arabic. It was more or less dumb luck that led me to Syria and not to Egypt, and in hindsight, I’m immensely grateful the cards fell the way they did. By the beginning of 2011, Syria was no longer a safe place for an American student. Therefore, it was to Beirut that I relocated to carry on my language work and research. I’ve been returning to Lebanon ever since.

A main theme in your book is the power of sectarianism, which you define as the “activation of religious identity as one of the main principles of social and political life.” You believe this is a key fact of Syrian and Lebanese societies. What do you think explains it?

Sahner: Among the different countries of the Arab and Muslim world, Syria and Lebanon stand out for the terrific variety of peoples who live there, and always have. This includes not just Sunni Muslims, who form an absolute majority between the two countries, but also smaller Muslim sects, such as Shi‘is, Alawis, Isma‘ilis, and Druze, along with non-Muslims, including numerous Christian denominations, and until recently, large populations of Jews. The existence of religious diversity does not in and of itself entail the existence of sectarianism. And yet, I think it’s safe to say that sectarianism depends on and cannot exist without a sense of religious difference in a society. In the Levant, we face a world in which, over the course of the nineteenth and twentieth centuries, political systems emerged that explicitly assigned power on the basis of sect (as in Lebanon), or which saw informal imbalances of power arise among sects (as in Syria). Because these systems thrust religious identity into the center of political life in this way, they tended to stoke resentments between communities, and under certain circumstances, spark violence.

You have a great interest in the Christian communities of Syria. Many Westerners are very unfamiliar with these communities. Could you give us a brief description of them? Who are they, what are their numbers?

Sahner: We tend to think of Syria as a Muslim-majority country, but for centuries after the rise of Islam, its population was majority Christian. The roots of these Christian communities are very ancient. In fact, as the Acts of the Apostles tells us, it was in the Syrian city of Antioch that the followers of Jesus were first called “Christians.” Over the centuries, Syrian Christianity became splintered into different denominations, which were divided over Continue reading

Putin and the Pope

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How have you been?

From Crux’s John Allen, here is an interesting and provocative article on today’s scheduled meeting between Russian president Vladimir Putin and Pope Francis. Surprisingly, Allen writes, on some issues, the two men have “forged an improbably strong partnership.”

One of those issues is the persecution of Mideast Christians. While Western nations have temporized, refusing even to acknowledge the sectarian dimension of the crisis–ISIS’s actions have nothing to do with religion, apparently–Putin has made himself the champion of the region’s Christians:

“As regards the Middle East and its Christians, their situation is dire,” Putin said in April. “The international community is not doing enough … this is the motherland of Christians. Christians have lived there from time immemorial, for thousands of years.”

In some corners of the Middle East, such as the Syrian region of Qualamun, Russia actually has floated the idea of granting citizenship to pockets of Orthodox Christians, effectively offering them a security blanket.

Now, talk is cheap. And Putin’s motivations are not wholly humanitarian. By offering itself as the protector of Mideast Christians, most of whom are Orthodox, Russia can exert influence in the region. (France has traditionally put itself forward in the same role, although France tends to focus on Catholics). Speaking out for Christian minorities also increases Putin’s credibility as the representative of traditional Christianity, which no doubt wins him admirers in the developing world, where Christianity is expanding, often in conflict with a rising Islam. And, of course, championing the cause of Orthodox Christians increases his political appeal in Russia itself.

Still, whatever his motives, Putin has focused on the suffering of Christians as Christians, and that is something many leaders in the West are apparently reluctant to do. It is also a stance, Allen writes, that appeals to Pope Francis:

Since Francis’ election in March 2013, meanwhile, no social or political issue has engaged the pontiff like the plight of persecuted Christians, especially in the Middle East.

In March, he demanded that the world stop trying to “hide” the reality of anti-Christian violence, and he’s also argued that the shared suffering of Orthodox, Catholics, and Protestants alike is the basis for a contemporary “ecumenism of blood.”

Allen notes that the conflict in Ukraine will pose obstacles for any real partnership between Russia and the Vatican. Ukrainian Catholics believe that Pope Francis has taken too soft a line in that particular crisis. Francis has described the conflict as an unfortunate disagreement between Christians, while Ukrainian Catholics tend to see it as the result of Russian provocation, which they wish Francis would denounce. In particular, Ukrainian Catholics resent what they see as bullying and duplicity on the part of the Russian Orthodox Church, particularly the Moscow Patriarchate.

As I say, an interesting and provocative piece.

Congratulations, John!

photo 1Congratulations to CLR Student Fellow John Boersma, who graduated from St. John’s Law School yesterday. John is off to start graduate studies in political theory at LSU next year. You’ve been a real help to us here, John, and we look forward to great things as you pursue your academic career. The beard is a good start! Godspeed and stay in touch.

Brady, “The Distinctiveness of Religion in American Law”

The recent Pew survey reveals that the percentage of Americans without a bradyreligious affiliation–the Nones–continues to grow. As I’ve written here on the blog, the rise of the Nones may pose a threat to religious freedom in America. By definition, Nones do not see organized religion as worthwhile; consequently, they may be less likely to endorse special legal protection for it. Supporters of religious freedom will have to work harder to convince our fellow citizens that religious liberty remains a vital asset, even for those who do not formally adhere to a particular religion.

Next month, Cambridge University Press will release what looks to be an interesting book on the subject, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, by Kathleen A. Brady (Emory). The publisher’s description follows:

In recent decades, religion’s traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion’s uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illumined by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. From this account, it develops a new framework for religion clause decision making and explains the implications of this framework for current controversies regarding protections for religious conscience.